GOOD COP, BAD DOCTOR

William Hurwitz's Conviction Tells Physicians To Put Drug Control
Above Pain Control

In April 2002, a patient asked Virginia pain doctor William Hurwitz
to write her a new prescription for methadone because her dog had
eaten the original. Since this patient was arrested on drug charges
four months later, her timeworn excuse looks like an obvious "red
flag," one of many federal prosecutors would fault Hurwitz for ignoring.

Yet as the former owner of a sweet but destructive Labrador
retriever, I can testify that dogs do sometimes shred and chew up
valuable items. When that happens to a prescription for much-needed
pain medication, what should a legitimate patient do? The
government's answer, which Hurwitz could not in good conscience
accept, can be summed up in one word: suffer.

By prosecuting Hurwitz for drug trafficking because some of his
patients abused or sold painkillers he prescribed, the Justice
Department reminded physicians throughout the country that they are
expected to be cops as well as doctors. If they fail to reconcile
these irreconcilable roles, if they do not treat their patients like
criminals as well as customers, they can be convicted of felonies
punishable by decades in prison, as Hurwitz was last week.

Hurwitz was a bad cop. He believed his patients when they said they
were in pain. He gave them the benefit of the doubt when they asked
for early refills, which could indicate diversion but also could
indicate inadequate doses. He continued treating their pain after
they tested positive for cocaine. He hesitated to abandon problem
patients he knew would have trouble getting treatment elsewhere.

The qualities that made Hurwitz a bad cop also made him a
compassionate doctor, the sort you would want treating you if you
suffered from unrelenting chronic pain and needed large doses of
narcotics simply to live a halfway normal life. Because few doctors
are willing to accept the legal jeopardy associated with treating
such patients, Hurwitz's clinic attracted hundreds from around the country.

After Hurwitz's practice was shut down in 2002, two of his patients
killed themselves because they could not get adequate pain relief
anywhere else. In the face of such desperation, Hurwitz's conviction
sends exactly the wrong message, telling doctors they risk their
liberty as well as their licenses and livelihoods if they place their
patients' interests above the government's demand that they help
fight the war on drugs.

The Hurwitz case shows it's not just "pill mill" operators who need
to worry. The jury, which convicted him on 16 out of 45 counts and
acquitted him on 17 (the judge dismissed the rest), did not seem to
accept the government's portrayal of him as a drug dealer in a white coat.

In interviews with New York Times science columnist John Tierney,
three jurors conceded that Hurwitz, who received no money from
black-market drug sales, appeared to be a sincere physician who was
hoodwinked by unscrupulous patients. "These patients used the doctor
shamelessly," said one juror. "I don't see him getting anything
financial out of it. Many of the patients weren't even paying him. He
had to believe that he was just treating them for pain."

This was the very issue that last year led the U.S. Court of Appeals
for the 4th Circuit to overturn the 25-year prison sentence that
resulted from Hurwitz's first drug trafficking trial. The prosecution
said it did not matter whether Hurwitz was acting in good faith, and
the appeals court disagreed.

"There were just some times he fell down on the job," a juror told
Tierney. Which job? Some critics have accused Hurwitz of bad medical
judgment, to which the proper legal response is civil liability or
regulatory sanctions, not prison. The criminal case against him
focused on his failure as a cop, not as a doctor. If any of the
jurors who convicted him ever have the misfortune of suffering pain
severe enough to require strong medication, you can be sure they
won't be looking for a good cop.